IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MICHAEL TODD BURLINGAME,

Plaintiff,

vs. Civil Action 2:11-CV-817

Judge Sargus

Magistrate Judge King

MICHAEL J. ASTRUE, Commissioner

of Social Security,

Defendant.

REPORT AND RECOMMENDATION

I.

Introduction and Background

This is an action instituted under the provisions of 42

U.S.C. §405(g) for review of a final decision of the Commissioner

of Social Security denying plaintiff’s application for disability

insurance benefits. This matter is now before the Court on

plaintiff’s Statement of Errors, Doc. No. 13 and the Commissioner’s

Memorandum in Opposition, Doc. No. 16.

Plaintiff Michael Todd Burlingame filed his application

for benefits on September 8, 2009, alleging that he has been

disabled since May 25, 2009, as a result of a heart condition and

acid reflux disease. PAGEID 136-37, 155. The application was denied

initially and upon reconsideration and plaintiff requested a de

novo hearing before an administrative law judge.

An administrative hearing was held on November 30, 2010,

at which plaintiff, represented by counsel, appeared and testified,

as did Eric W. Pruitt, who testified as a vocational expert. In a

decision dated December 16, 2010, the administrative law judge

found that, despite plaintiff’s severe impairments, plaintiff can

nevertheless perform jobs that exist in significant numbers in the

national economy and that he is therefore not disabled within the

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meaning of the Social Security Act. PAGEID 50-59. That decision

became the final decision of the Commissioner of Social Security

when the Appeals Council declined review on July 29, 2011. PAGEID

41-43.

Plaintiff was 45 years of age on the date the

administrative law judge issued his administrative decision.

Plaintiff has a ninth grade, “limited,” education and prior

relevant work experience as a mason, brick layer and brick layer

supervisor. PAGEID 57, 71, 150-52, 160. Plaintiff was last insured

for disability insurance purposes on September 30, 2010. At the

time of the administrative hearing, plaintiff was performing parttime masonry work, although the administrative law judge found that

this activity did not meet the income requirements for substantial

gainful activity. PAGEID 52.

Plaintiff suffered an episode of ventricular fibrillation

and cardiac arrest on May 25, 2009. See PAGEID 245-95. After

undergoing an internal cardiac defibrillator insertion, he was

discharged on June 4, 2009 with diagnoses of cardiac arrest,

alcohol abuse, cardiomyopathy and bacterial pneumonia. PageID 251.

Plaintiff testified at the administrative hearing that

the greatest impediment to his ability to return to work is

fatigue. PAGEID 71-72. He naps every day. PAGEID 74. He also

suffers severe memory problems because of the lack of oxygen that

he experienced during his cardiac episode. He must rely on his

wife to remind him to take his medications. PAGEID 75. His

concentration is also impaired: “I”ll drift a lot,” PAGEID 76,

although he can follow television shows, PAGEID 75. Plaintiff can

drive, PAGEID 70; he has difficulty reading. PAGEID 71. He

experiences headaches, which last a couple hours, PAGEID 77,

although he is not sure that his medications cause those headaches.

PAGEID 72. He estimates that he can lift 40 pounds, id., or “a

handful of brick,” PAGEID 78, although not repetitively. PAGEID

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78. He can still engage in many of his usual activities, such as

yard work, although it now takes him longer to complete those

chores. PAGEID 73. He socializes with friends and neighbors “a

couple times a week.” Id. He is limited by fatigue to standing for

one-half hour. PAGEID 77-78.

II.

The Medical Evidence of Record

Plaintiff’s treating cardiovascular specialist is Anthony

T. Chapekis, M.D. On October 4, 2009, Dr. Chapekis noted that

plaintiff had done reasonably well since his hospitalization

although his anoxic brain injury left him with attention problems

and memory loss. PAGEID 302, 340-41. Plaintiff had no clear

limiting exertional symptoms, although he continued to experience

fatigue. Id. From a cardiac standpoint, plaintiff was quite

stable. Id.

Plaintiff was examined by clinical neuropsychologist Ken

Bain, Ph.D., in November and December 2009 upon referral by Dr.

Chapekis. PAGEID 362-67. Dr. Bain diagnosed amnestic disorder and

anoxic brain injury secondary to cardiac arrest. Dr. Bain noted

evidence of moderate problems with word-finding capabilities

although speech was coherent and relevant. PAGEID 363. Auditory

comprehension was normal, although long-term semantic recall was

moderately to severely impaired in the areas of vocabulary

knowledge and general fund of information. Id. Test performance

improved with cueing, which indicated significant retrieval

problems. Id. Visual attention was superior; auditory attention

was noticeably lower. Id. There were deficits in the area of

distractibility and recent memory was limited. PAGEID 363-64. 

There were mild to moderate deficits in sequencing, organization

and speed of information processing, but performance was average in

the areas of social judgment, abstract verbal and mathematical

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reasoning, constructional praxis and word generation capabilities. 

PAGEID 364-65. There were no significant neurobehavioral problems

in the areas of preservation, impulsivity, inappropriate social

behavior or impaired self-awareness. PAGEID 365. Range of affect

was normal and plaintiff displayed an appropriate sense of humor. 

Reality testing was intact; there was no evidence of bizarre

ideation. Id. According to Dr. Bain, plaintiff would be unable to

return to his job as a mason on a full-time basis because of his

cognitive difficulties with attention, recent memory functioning

and speed of information processing and because of his problem with

endurance. PAGEID 366. This same combination of cognitive and

physical deficits arising from the May 2009 cardiac episode would

preclude any full-time competitive employment for at least another

nine to twelve months. Id. “It remains to be seen to what extent

his cognitive deficits may improve significantly to enable him to

handle the cognitive demands of his former job.” Id. Dr. Bain

referred plaintiff to the Bureau of Vocational Rehabilitation to

explore other types of employment, PAGEID 366-67, although Dr. Bain

suggested that plaintiff’s history of a learning disability and his

lack of a high school diploma, combined with his physical and

cognitive deficits, might preclude any type of full-time

competitive employment. PAGEID 367. 

State agency psychologist Todd Finnerty, Psy.D., reviewed

the record and completed a psychiatric review technique form in

January 2010. PAGEID 374-87. Considering plaintiff’s diagnosed 

amnestic anoxic brain injury secondary to a cardiac arrest by

reference to Listing 12.02 (Organic Mental Disorders), PAGEID 374,1

Dr. Finnerty concluded that plaintiff did not meet the “B” criteria

of the Listing because he had only a mild restriction in his

activities of daily living, mild difficulties in maintaining social

1

Dr. Finnerty also considered Listing 12.09 (Substance Addiction

Disorders). PAGEID 374.

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functioning, moderate difficulties in maintaining concentration,

persistence, or pace, and no episodes of decompensation. PAGEID

384. Dr. Finnerty also completed a mental residual functional

capacity assessment in which he concluded that plaintiff would be

moderately impaired in his abilities to understand, remember and

carry out detailed instructions, to maintain attention and

concentration for extended periods, to perform activities within a

schedule, maintain regular attendance and be punctual within

customary tolerances, to make simple work-related decisions, to

complete a normal work day and work week without interruptions from

psychologically based symptoms and to perform at a consistent pace

without an unreasonable number and length of rest periods and to

respond appropriately to changes in the work setting. PAGEID 477-

78. Dr. Finnerty found that plaintiff’s statements were only

partially credible because he apparently failed to report his

history of alcohol abuse to Dr. Bain. PAGEID 479. According to Dr.

Finnerty, plaintiff would have difficulty running a business and

working with customers but that, as evidenced by plaintiff’s

activities of daily living and Dr. Bain’s testing, plaintiff

retained the capacity to perform simple, repetitive tasks without

fast paced production quotas. Id. Dr. Finnerty also found that Dr.

Bain’s assessment of plaintiff’s condition was inconsistent with

plaintiff’s standardized test scores. Id. In March 2010, Roseann

Umana, Ph.D., affirmed Dr. Finnerty’s assessment. PAGEID 396. 

In January 2010, the file was reviewed by state agency

physician Anton Kreihofner, M.D., PAGEID 388-95, who opined that

plaintiff could occasionally lift/carry twenty pounds, frequently

lift/carry ten pounds and sit, stand or walk for up to 6 hours in

an 8-hour workday. Plaintiff could only occasionally climb ramps

and stairs and balance and could never climb ladders, ropes and

scaffolds. Plaintiff should avoid all exposure to hazards,

including machinery and heights. PAGEID 392. In May 2010, Ralph

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Graham, M.D., another state agency physician, affirmed Dr.

Freihofner’s assessment. PAGEID 397.

In September 2010, Dr. Chapekis reported that plaintiff’s

anoxic brain injury continued to plague him. The doctor

discontinued plaintiff’s prescribed statin medication because of

plaintiff’s ill defined complaints of myalgias and muscle weakness,

notwithstanding plaintiff’s continued hyperlipidemia. Dr. Chapekis

also noted complaints of atypical chest pain. Dr. Chapekis

recommended further testing and re-evaluation by a

neuropsychologist given changes in his mental status. PAGEID 446.2

III.

Administrative Decision

In his decision, the administrative law judge found that

plaintiff’s severe impairments consist of amnestic disorder

secondary to cardiac arrest with anoxia, and cardiomyopathy with

defibrillator installed. PAGEID 52. Finding that plaintiff does not

have an impairment or combination of impairments that meets or

medically equals any listed impairment, PAGEID 53, the

administrative law judge went on to find that, through the date

that his insured status lapsed, plaintiff retained the residual

functional capacity to perform light work limited to simple tasks

2

After the administrative law judge issued his unfavorable decision,

plaintiff’s counsel submitted additional materials to the Appeals Council. 

PAGEID 225-229. Included in those materials are a letter from plaintiff’s

wife, dated February 15, 2011 and describing the effects of plaintiff’s

claimed fatigue and cognitive impairments, PAGEID 226, and notes from a

February 21, 2011 office visit with Steven D. Nelson, M.D., which – apart from

an elevated blood pressure reading – reflects essentially negative findings.

PAGEID 227-29. Evidence submitted to the Appeals Council may not be

considered by the District Court for purposes of substantial evidence review

of the administrative law judge’s decision. Bass v. McMahon, 499 F.3d 506,

512-13 (6th Cir. 2007); see also Cline v. Comm’r of Social Security, 96 F.3d

146, 148 (6th Cir. 1996); Cotton v. Sullivan, 2 F.3d 692 (6th Cir. 1993); Casey

v. Secretary of Health & Human Services, 987 F.2d 1230, 1233 (6th Cir. 1993). 

Moreover, plaintiff does not explain why testimony or other information from

plaintiff’s wife was not submitted to the administrative law judge. In any

event, plaintiff does not ask for remand of the action pursuant to Sentence 6

of 42 U.S.C. § 405(g) for consideration of new and material evidence. 

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featuring no production quotas. PAGEID 55. Relying on the

vocational expert’s testimony, the administrative law judge also

found that, although plaintiff could not perform any past relevant

work, he was able to perform a significant number of jobs in the

national economy, including such light jobs as textile inspector,

mail clerk and packing machine inspector and such sedentary jobs as

automatic grinding machine operator, dowel inspector and food and

beverage order clerk. PAGEID 57-58. Accordingly, the administrative

law judge concluded that plaintiff was not disabled within the

meaning of the Social Act at any time prior to the lapse of his

insured status. PAGEID 58. 

IV.

Discussion

Pursuant to 42 U.S.C. §405(g), judicial review of the

Commissioner’s decision is limited to determining whether the

findings of the administrative law judge are supported by

substantial evidence and employed the proper legal standards.

Richardson v. Perales, 402 U.S. 389 (1971). Substantial evidence is

more than a scintilla of evidence but less than a preponderance; it

is such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion. See Buxton v. Halter, 246 F.3d

762, 772 (6th Cir. 2001); Kirk v. Secretary of Health & Human

Servs., 667 F.2d 524, 535 (6th Cir. 1981). This Court does not try

the case de novo, nor does it resolve conflicts in the evidence or

questions of credibility. See Brainard v. Secretary of Health &

Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v. Heckler,

745 F.2d 383, 387 (6th Cir. 1984).

In determining the existence of substantial evidence,

this Court must examine the administrative record as a whole. Kirk,

667 F.2d at 536. If the Commissioner’s decision is supported by

substantial evidence, it must be affirmed even if this Court would

decide the matter differently, see Kinsella v. Schweiker, 708 F.2d

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1058, 1059 (6th Cir. 1983), and even if substantial evidence also

supports the opposite conclusion. Longworth v. Comm’r Soc. Sec.,

402 F.3d 591, 595 (6th Cir. 2005).

In his Statement of Errors, plaintiff contends that the

administrative law judge violated the “treating physician rule” in

his evaluation of Dr. Bain’s opinions and instead substituted his

own lay opinion. In a related argument, plaintiff also contends

that the administrative law judge failed to include all of

plaintiff’s limitations in the hypotheticals posed to the

vocational expert. Plaintiff also argues that it was improper to

reject Dr. Bain’s opinions without also securing the testimony at

the hearing of an expert able to address the severity of

plaintiff’s psychological impairments. Finally, plaintiff

challenges the administrative law judge’s credibility assessment. 

1. Evaluation of Dr. Bain’s Opinions

The opinion of a treating provider must be given

controlling weight if that opinion is “well-supported by medically

acceptable clinical and laboratory diagnostic techniques” and is

“not inconsistent with the other substantial evidence in [the] case

record.” 20 C.F.R. § 404.1527(d)(2). Even if the opinion of a

treating provider is not entitled to controlling weight, an

administrative law judge is nevertheless required to determine how

much weight the opinion is entitled to by considering such factors

as the length, nature and extent of the treatment relationship, the

frequency of examination, the medical specialty of the treating

physician, the extent to which the opinion is supported by the

evidence, and the consistency of the opinion with the record as a

whole. 20 C.F.R. § 404.1527(d)(2)-(6); Blakley v. Commissioner of

Social Security, 581 F.3d 399, 406 (6th Cir. 2009); Wilson, at 544. 

Moreover, an administrative law judge must provide “good reasons”

for discounting the opinion of a treating provider, i.e., reasons

that are “sufficiently specific to make clear to any subsequent

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reviewers the weight the adjudicator gave to the treating source’s

medical opinion and the reasons for that weight.” Rogers v.

Commissioner of Social Sec., 486 F.3d 234, 242 (6th Cir. 2007),

citing Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *5. This special

treatment afforded to the opinions of treating providers recognizes

that

these sources are likely to be the medical

professionals most able to provide a detailed,

longitudinal picture of [the claimant’s]

medical impairment(s) and may bring a unique

perspective to the medical evidence that

cannot be obtained from the objective medical

findings alone or from reports of individual

examinations, such as consultative

examinations or brief hospitalizations. 

Id. See also Wilson v. Commissioner of Social Sec., 378 F.3d 541,

544 (6th Cir. 2004).

The administrative law judge did not characterize Dr.

Bain as a treating provider but instead referred to the

neuropsychologist as a “consultative examin[er].” PAGEID 53. A

treating provider is a claimant’s “‘own physician, psychologist, or

other acceptable medical source who provides [a claimant] . . .

with medical treatment or evaluation and who has, or has had, an

ongoing treatment relationship with you.’” Kornecky v. Comm’r of

Soc. Sec., No. 04-2171, 167 F. App’x 496, 506 (6th Cir. Feb. 9,

2006), quoting 20 C.F.R. § 404.1502 [emphasis in original].

Generally, the United States Court of Appeals for the Sixth Circuit

has declined to find that an ongoing treatment relationship exists

after just two or three examinations. See, e.g., Boucher v. Apfel,

No. 99-1906, 2000 WL 1769520, at *9 (6th Cir. Nov. 15, 2000)

(finding that a doctor did not qualify as a treating source and did

not have an ongoing treatment relationship with the claimant even

though the doctor had examined claimant three times over a two-year

period); Yamin v. Comm’r of Soc. Sec., 67 F. App’x 883, 885 (6th

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Cir. 2003) (“These two examinations did not give [the physician] a

long term overview of [the claimant’s] condition.”). See also Helm

v. Comm’r of Soc. Sec., Case No. 5025, 2011 WL 13918, at *3 n.3

(6th Cir. Jan. 4, 2011) (noting that “it is questionable whether a

physician who examines a patient only three times over a four-month

period is a treating source – as opposed to a nontreating (but

examining) source”). In this case, Dr. Bain offered his opinions

on January 4, 2010 after administering tests in November and

December 2009. PAGEID 362. In the opinion of this Court, Dr.

Bain’s relationship with plaintiff was properly characterized as

that of a consultative examiner rather than that of a treating

provider whose on-going treating relationship provides the

longitudinal insight that warrants the special deference accorded

the opinions of treating providers. The administrative law judge

did not, therefore err, in failing to accord controlling weight to

Dr. Bain’s opinions. 

Although Dr. Bain’s opinions were not entitled to the

deference accorded to those of treating providers, the

administrative law judge was nevertheless obliged to consider those

opinions. 20 C.F.R. § 404.1527(a)(2). In the case presently

before the Court, the administrative law judge found, first, that

Dr. Bain’s opinions “appeared to be primarily considering

[plaintiff’s] past employment.” PAGEID 56. In any event, the

administrative law judge found, Dr. Bain’s opinions were

inconsistent with plaintiff’s activities and his own testimony. 

Id. The Court concludes that these findings enjoy substantial

support in the record.

The Court also disagrees with plaintiff’s contention that

the administrative law judge improperly substituted his own

evaluation of the medical evidence when he found that plaintiff has

the residual functional capacity to perform a wide, but limited,

range of light work. The residual functional capacity

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determination is expressly reserved to the Commissioner. 20 C.F.R.

§§404.1527(e)(2), 404.1546. The report and opinion of the state

agency psychologist, Dr. Finnerty, that plaintiff could perform

simple, repetitive tasks without fast paced production quotas,

PAGEID 479, provides substantial support for the administrative law

judge’s residual functional capacity assessment.

2. Hypotheticals Posed to the Vocational Expert

In yet another argument related to the administrative law

judge’s assessment of plaintiff’s residual functional capacity,

plaintiff argues that the hypotheticals posed to the vocational

expert were flawed because they did not include “more limitations

regarding [plaintiff’s] memory, concentration and ability to stay

on task . . . .” Statement of Errors, p. 14.

As the Court noted supra, the administrative law judge’s

assessment of plaintiff’s residual functional capacity enjoys

substantial support in the record. Thus, a hypothetical that

includes the limitations found by the administrative law judge is

properly posed to the vocational expert. See Felisky v. Bowen, 35

F.3d 1027, 1036 (6th Cir. 1994)(the Commissioner may rely on

vocational testimony based on a hypothetical that “accurately

describes the plaintiff in all significant, relevant respects. .

.”). Accord Varley v. Sec. of Health & Human Svcs., 820 F.2d 777,

779 (6th Cir.1987). In formulating a proper hypothetical, an

administrative law judge must incorporate only those limitations

that he has found to be credible. Stanley v. Secretary of Health

& Human Servs., 39 F.3d 115, 118-19 (6th Cir. 1994). 

In the case presently before the Court, the

administrative law judge included in the hypotheticals all the

limitations found by him. Because, for the reasons stated supra,

the Court concludes that those findings enjoy substantial support

in the record, the Court also concludes that the administrative law

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judge did not err in relying on the testimony of the vocational

expert.

3. Failure to Call a Medical Expert

Plaintiff also argues that the administrative law judge

should have secured the assistance of a medical expert to evaluate

plaintiff’s impairments by reference to Listing 12.02, which

addresses organic mental disorders. The primary function of a

medical expert is to explain medical terms and the findings in

medical reports in more complex cases in terms that the

administrative law judge, a who is not a medical professional, may

understand. See, Richardson v. Perales, 402 U.S. 389, 408 (1972).

The Commissioner’s regulations provide that an administrative law

judge “may also ask for and consider opinions from medical experts

on the nature and severity of [the claimant’s] impairment(s) and on

whether [the] impairment(s) equals the requirements of any

impairment listed in appendix 1 to this subpart.” 20 C.F.R. §

404,1527(f)(2)(iii). 

The Commissioner’s operations manual indicates that it

falls within the administrative law judge’s discretion whether to

seek the assistance of a medical expert. HALLEX I-2-5-32 (September

28, 2005). “The primary reason an administrative law judge may

obtain medical expert opinion is to gain information which will

help him or her evaluate the medical evidence in a case, and

determine whether the claimant is disabled or blind.” Id. The

operations manual indicates that an administrative law judge “may

need to obtain an medical expert’s opinion” in the following

circumstances:

• the administrative law judge is determining whether a

claimant’s impairment(s) meets a listed impairment(s);

• the administrative law judge is determining the usual

dosage and effect of drugs and other forms of therapy;

• the administrative law judge is assessing a claimant’s

failure to follow prescribed treatment;

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• the administrative law judge is determining the degree

of severity of a claimant’s physical or mental

impairment;

• the administrative law judge has reasonable doubt

about the adequacy of the medical record in a case, and

believes that an ME may be able to suggest additional

relevant evidence;

• the medical evidence is conflicting or confusing, and

the administrative law judge believes a medical expert

may be able to clarify and explain the evidence or help

resolve a conflict;

• the significance of clinical or laboratory findings in

the record is not clear, and the administrative law judge

believes a medical expert may be able to explain the

findings and assist the administrative law judge in

assessing their clinical significance;

• the administrative law judge is determining the

claimant’s residual functional capacity, e.g., the

administrative law judge may ask the medical expert to

explain or clarify the claimant’s functional limitations

and abilities as established by the medical evidence of

record;

• the administrative law judge has a question about the

etiology or course of a disease and how it may affect the

claimant’s ability to engage in work activities at

pertinent points in time, e.g., the administrative law

judge may ask the medical expert to explain the nature of

an impairment and identify any medically contraindicated

activities; or 

• the administrative law judge desires expert medical

opinion regarding the onset of an impairment.

HALLEX I-2-5-34 (September 28, 2005). An administrative law judge’s

decision whether a medical expert is necessary is inherently

discretionary. An administrative law judge abuses his discretion

only when the testimony of a medical expert is “required for the

discharge of the administrative law judge’s duty to conduct a full

inquiry into the claimant’s allegations. See 20 C.F.R. § 416.1444.”

Haywood v. Sullivan, 888 F.2d 1463, 1467-68 (5th Cir. 1989). See

also, Foster v. Halter, 279 F.3d 348, 355 (6th Cir. 2001) (“An

administrative law judge has discretion to determine whether

further evidence, such as additional testing or expert testimony,

is necessary”).

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Here, the administrative law judge did not abuse his

discretion in failing to call a medical – or psychological – expert

to testify at the administrative hearing. The administrative record

includes the opinions of the two state agency psychologists who,

after reviewing the record and Dr. Bain’s opinions, concluded that

plaintiff’s mental impairments do not meet or equal any listed

impairment, including Listing 12.02. See PAGEID 374. In short,

the administrative law judge did not err in this regard.

4. The Administrative Law Judge’s Credibility Determination

Finally, plaintiff contends that the administrative law

judge erred in his evaluation of plaintiff’s credibility. A

claimant’s subjective complaints must be supported by objective

medical evidence in order to serve as a basis for a finding of

disability. Casey v. Secretary of Health and Human Services, 987

F.2d 1230 (6th Cir. 1993). See also 42 U.S.C. §423(d)(5)(A). In

evaluating subjective complaints, the Court looks to the record to

determine whether there is objective medical evidence of an

underlying medical condition. If so, then, the Court must determine

(1) whether objective medical evidence confirms the severity of the

complaint arising from the condition; or (2) whether the

objectively established medical condition is of such severity that

it can reasonably be expected to produce the alleged complaint.

Stanley v. Secretary of Health and Human Services, 29 F.3d 115, 117

(6th Cir. 1994) (quoting Duncan v. Secretary of Health and Human

Services, 801 F.2d 847, 853 (6th Cir. 1986).

Plaintiff contends that he cannot work because of fatigue

and memory problems. The administrative law judge found that

plaintiff’s allegations “are not entirely credible”:

The claimant testified that he is currently

working on a part-time basis as a bricklayer

and that [he] earned between $7000 and $8000

this year. He does not address his ability to

perform simpler jobs that require less thought

and exertion. He is capable of performing

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many functional activities. He is able to

drive, stand, and walk. He is able to attend

to his personal care. He does many activities

of daily living, although he alleges some of

them take longer now. He is also able to

fish, hunt, play pool, and socialize with

friends and neighbors.

PAGEID 55. The administrative law judge carefully considered the

evidence, applied the appropriate standard for considering

plaintiff’s subjective allegations and made findings regarding

plaintiff’s credibility that enjoy substantial support in the

record. The Court is without authority to disturb those findings.

In short, the Court has carefully reviewed the record in

this action and concludes that the decision of the administrative

law judge is supported by substantial evidence. It is therefore

RECOMMENDED that the decision of the Commissioner be AFFIRMED and

that this action be DISMISSED.

If any party seeks review by the District Judge of this

Report and Recommendation, that party may, within fourteen (14)

days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and

Recommendation, and the part thereof in question, as well as the

basis for objection thereto. 28 U.S.C. §636(b)(1); F.R. Civ. P.

72(b). Response to objections must be filed within fourteen (14)

days after being served with a copy thereof. F.R. Civ. P. 72(b).

The parties are specifically advised that failure to

object to the Report and Recommendation will result in a waiver of

the right to de novo review by the District Judge and of the right

to appeal the decision of the District Court adopting the Report

and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); Smith

v. Detroit Federation of Teachers, Local 231 etc., 829 F.2d 1370

(6th Cir. 1987); United States v. Walters, 638 F.2d 947 (6th Cir.

1981).

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Date July 19, 2012 s/Norah McCann King

Norah McCann King

United States Magistrate Judge

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